Prisons will not be reformed until and unless we rethink our views on punishment and retribution

2nd December 2022

Here is the introduction to a thing about prisons I wrote at the Financial Times in 2013:

We are all, of course, familiar with the notion of prisons – and many of us will have Very Strong Opinions about the lengths of custodial sentences:

“Six years! Eight years! Fifteen years! More, more!”

“Higher, higher, higher!”

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But.

For the reasons set out in that Financial Times piece, prisons are a strange as well as counter-productive idea for dealing with most crimes.

Prisons, generally speaking, are an expensive way of making bad people worse.

But the notion of incarceration is so deeply embedded in our collective consciousness it takes real effort to dislodge it.

It was not always like this.

In some earlier times, prisons were where you kept those charged with a crime until their cases could be heard and any sentences – capital, corporal, transportation – could be imposed.

Imprisonment itself was thereby a means to an end, rather than the punishment for criminal activity.

(The position for civil matters was different, with the debtors’ prisons, asylums and workhouses, all keeping certain undesirables out of the way.)

Around 1800 imprisonment became the normal punishment itself for crime – though for many onlookers the loss of liberty was not enough: prisons also had to be as miserable if not brutal as possible.

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And little, if any, thought is ever given to the (innocent) families and dependents of those incarcerated.

If they are thought about at all, it is with a shrug and a vague idea that it is the criminals who are to be blamed and/or that their (innocent) families and dependents are tainted by association.

And so that the innocent suffer becomes an output of the criminal justice system, as well as the protection of the innocent being the system’s supposed purpose.

The state has to destroy innocent lives, so as to protect them.

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There are at least two problems for any reform of prisons.

The first is that imprisonment is central to how society thinks about the punishment of crime.

A convicted person receiving a range of sanctions will still be described “as walking free from court” by outraged newspapers to their outraged readers.

The second is a consensus of what should replace imprisonment, especially given the popular view that retribution is the central purpose of punishment.

Of course, those who pose a danger to others or commit murders and other serious offences against the person should be locked away – and, unlike many liberals, I even support whole-life tariffs in exceptional circumstances.

But until and unless we rethink our views about punishment and retribution, the current expensive and damaging system will continue, for want of any alternative.

I was once asked what current day practice would be looked on in the future as akin to how we now see those who facilitated slavery.

My answer, more with hope than expectation, was: incarceration being considered the norm for punishments, with any alternative having to be justified.

Anyway, this post was triggered by reading this piece in the Guardian.

Let me know below what you think – about the points I set out above and the Guardian article, and what you think about prisons and imprisonment as punishment generally.

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The secularisation of the United Kingdom state

1st December 2022

If you pick up a constitutional law text of a certain age you may find passages, perhaps even a chapter, setting out the relationship between the government of the United Kingdom and the Church of England.

You may even get passages on the Church of Scotland and the now disestablished Churches of Wales and of Ireland.

Next year at the coronation, there will be a great deal of religious content to the ceremony – and even when Charles III acceded earlier this year, one of the first required acts was to swear an oath in respect of the Church of Scotland.

Meanwhile bishops of the Church of England sit in the House of Lords and in our courts the first thing a judge and a jury will find out about you as a witness is whether you believe in a god or not.

Just over one hundred years ago, the state was even more fused with the church and, before 1828-32, some historians even speak of a “confessional state” which, at least in England, structurally privileged the Church of England.

The established churches were (and to a limited still extent still are) part of the constitution of the United Kingdom – if that constitution is understood descriptively as the answer to the question: how is the United Kingdom constituted.

As a non-militant atheist, I would welcome a state which was suddenly and entirely secularised, that is if it could be done painlessly in an instant of a blink.

But as someone interested in practical constitutional reform, I am less enthusiastic about disestablishment, given the time and trouble it would take.

Yes, get rid of the bishops from their automatic seats in the legislature, and also get rid of the presumption in favour of religious oaths in courts.

But that is about it: the rest can join the long list of constitutional reforms it would be nice to have, but not perhaps yet.

This is, ironically, an Anglican form of atheism: a via media between being religious and militant atheism.

And given the relationship between the Crown and the Church of England in particular under the new King – the defender of faith, without any definite article – there is no likelihood of any disestablishment in the near future.

So the current compromise will continue for a while.

That is: four nations; two established churches; and one of those established churches with seats in parliament.

And it is: a semi-confessional state at a time where there are many religious faiths in society, as well as an increasing amount of us free from any religious faith.

If we were starting from scratch, we would probably not give the Church of England such an elevated position within our polity – just as we would not now build that nice parish church around the corner.

But given that it is there, we cannot be bothered to get rid of it entirely.

And many of the parish churches are quaint to look at, and nice to visit about this time of year.

Let us put disestablishment off to another year.

***

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What the Ministry of Justice should do with Reading Gaol

30th November 2022

Bill Hicks did this great routine about Jesus of Nazareth coming back to see crosses everywhere:

“Lots of Christians wear crosses around their necks. You think when Jesus comes back he’s gonna want to see a fucking cross, man?

“”Ow.” Might be why he hasn’t shown up yet.

“”Man, they’re still wearing crosses. Fuck it, I’m not goin’ back, Dad. No, they totally missed the point. When they start wearing fishes, I might show up again, but… let me bury fossils with you, Dad. Fuck ’em, let’s fuck with ’em! Hand me that brontosaurus head, Dad.””

Hicks had a point.

The crucifix was a torture device, which was used to ensure the victim had an agonising death.

It has taken about two thousand years of cultural familiarisation for it to be a comforting symbol, which some even place outside schools and hospitals.

“You know, kinda like going up to Jackie Onassis with a rifle pendant on, you know. “Thinkin’ of John, Jackie. We love him. Just tryin’ to keep that memory alive, baby.””

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Perhaps the ghost of Oscar Wilde would have the similar reaction to the calls for the closed Reading Gaol to be now turned into an arts centre:

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It was, after all, where Wilde spent his time incarcerated, serving a sentence of two years’ hard labour, for gross indecency – the crime being consensual homosexual intercourse.

The campaign has the support of the local member of parliament:

The Ministry of Justice, on the other hand, seems to have done nothing since 2014 with this prime real estate in that tent of urbanisation which geographers call the largest town in England.

BBC News tells us that the Ministry of Justice “has previously rejected the plan and said it wanted to “seek [the] best value for taxpayers”.”

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One suspects Wilde would have been generous in his support with this campaign to turn his gaol into an arts venue.

Indeed, that we even associate the prison with Wilde is down to his own writing.

He, of course, immortalised the prison in the title of one of his greatest poems, about the execution and burial of an inmate when he was there:

“In Reading gaol by Reading town
There is a pit of shame,
And in it lies a wretched man
Eaten by teeth of flame,
In a burning winding-sheet he lies,
And his grave has got no name.”
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And in his autobiographical De Profundis, Wilde wrote:

“People point to Reading Gaol and say, ‘That is where the artistic life leads a man.’  Well, it might lead to worse places.”

He then mentions some of those worse places:

“A man whose desire is to be something separate from himself, to be a member of Parliament, or a successful grocer, or a prominent solicitor, or a judge, or something equally tedious, invariably succeeds in being what he wants to be.  That is his punishment.”

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One gets the impression that Wilde would actually quite approve of Reading Gaol being turned into an arts centre, especially with the grudging consent of the government.

(It would be a fitting counterpart to the bank note memorial for that other great figure prosecuted under and broken by the very same vile “gross indecency” offence, Alan Turing.)

Wilde would probably not even rub it in for those working at the Ministry of Justice, for he would regard their mundane civil service jobs as punishment enough.

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Reading Gaol should become a standing reminder of the wickedness of which our criminal law can be capable – against Wilde, Turing, and so many others.

And this would be as an arts venue, and not as a block of flats.

This would also certainly be “better value for taxpayers” than the prison standing idle for another eight years, located next to the touristy plush grounds of the ruined abbey in Reading.

The Ministry of Justice may well know the price that land could command for development, but they do not know that property’s value.

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“Nowadays people know the price of everything and the value of nothing.”

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Why we should cheer Owen Paterson taking his case to the European Court of Human Rights

29th November 2022

The former member of parliament Owen Paterson is taking a case to the European Court of Human Rights.

There is nothing wrong with this.

Indeed, there is everything right about him doing so.

Paterson is a European human aggrieved about his fundamental rights, and he has the protection of the convention that guarantees his human rights.

It is for such aggrieved persons that the convention exists.

Indeed, the convention protects the rights of all humans subject to the jurisdictions of signatory states, and some of the convention rights even extend to legal persons such as companies.

Paterson has as much right as any other person in a convention state to petition the Strasbourg court.

*

But.

Paterson as a politician sought to remove the protection of the European Convention on Human Rights from other people.

In 2014, Paterson argued not only for the United Kingdom to take a restricted view of its obligations under the convention, but for the whole lot to go:

“Much of the problematical immigration into this country stems not just from the EU but from the European Court of Human Rights.

“This is exacerbated by the rulings of judges in the court at Strasbourg and by our own UK courts implementing the Human Rights Act.

“Repeal of the HRA and adoption of a new Bill of Rights, breaking free from the ECHR, would also relieve us of migrant pressure, include such absurdities as not being able to deport illegal immigrants who come to Calais, because – according to our judges – France is not a ‘safe’ country for asylum seekers.”

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Now Paterson – through his lawyers – says he is going to Strasbourg.

Presumably this means he now believes that we should not be “breaking free” from the convention just yet, and that he would rather like a non “exacerbating” judgment from the judges at Strasbourg.

To the credit of his lawyers, they appreciate (and anticipate) the sheer absurdity of their client’s position:

“The irony that Mr Paterson, a vocal opponent of European institutions, should be seeking the help of the ECHR is not lost.”

Well.

You could say that.

And the sentence that then follows in the lawyers’ press release is just beautiful:

“But he has no other choice, as the Government has yet to meet its promise of repatriating human rights law to Britain, hence the application to Strasbourg.”

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He has no other choice.

And that is the very point of human rights law, and of international human rights conventions and international human rights courts.

They are all there as a last resort, for those with no other choice.

When you have a grievance that local forms of law have failed you, and when you believe fundamental rights should mean that your legal position is different from how you have been treated, then this is when you should be able to rely on your human rights in accordance with international law instruments, and seek a remedy at an international court.

And it should not matter if the right you are relying on is about fair trials, or torture, or free expression, or privacy.

Those migrants about whom Paterson complained in 2014 also “had no other choice”.

Various people have “had no other choice”.

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Paterson’s petition to the Strasbourg court may not succeed.

His complaint about parliamentary rules and procedures may not gain the favour of the Strasbourg judges.

The complaint is somewhat ambitious:

“The applicant complains that his Article 8 rights were infringed, as the public finding that he had breached the Code of Conduct damaged his good reputation, and that the process by which the allegations against him were investigated and considered was not fair in many basic respects.

“Communicated under Article 8.”

(Yes, Article 8 – and it is not clear why the complaint is not (also) under Article 6.)

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Paterson deserves a fair hearing of his petition.

Paterson is right to ask the Strasbourg court to apply international human rights standards to the parliament of the United Kingdom to see if our parliament is found wanting.

He is right not to be swayed by notions of “parliamentary supremacy” and “national sovereignty”.

Other politicians have only managed to get the parliament of the United Kingdom to pass legislation giving effect to the European Convention on Human Rights.

Paterson wants to go a grand step further and subject parliament itself to the convention.

He wishes, to adopt some jargon, for our “political constitution” to be judicialised according to European legal standards.

If he succeeds, Parliament will be obliged to change its own processes by a European institution.

Of course: it is a pity that Paterson sought to prevent others from protecting their rights at Strasbourg.

However, if he succeeds in this claim, he may do more to subject our polity as a whole to the European Convention of Human Rights than any politician since the Human Rights Act 1998 was passed.

This blog wishes him luck.

***

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We are not only in the age of easy answers but also in the age of easy-to-avoid questions

28th November 2022

Somebody over on Twitter thoughtfully dug up something I wrote back in 2017:

https://twitter.com/sunildvr/status/1595914638109048832

I think the piece – which links Brexit with the Iraq invasion and other follies – holds up well.

But I also now think the problem identified is only part of the problem.

This because “easy answers” are only possible when hard questions are easily evaded.

For example, one of the most depressing features of contemporary political discourse is the frequency of answers that begin with “I will take no lectures from…”, “I give no apologies for…”, “what people want to know is…”, “what the public expects is….”, and, of course, “let me be absolutely clear….”.

These non-answers render almost all political interviews – and many parliamentary questions – pointless.

Few questions can land, and accountability is brushed off.

And what is most depressing: those watching and listening do not seem to care.

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This blog has previously averred that the problem is not so much that politicians lie but that voters do not seem to care about being lied to.

And so, until and unless voters care about being lied to, then politicians will get away with their dishonesty.

Similarly, until and unless voters care about politicians not answering questions, then politicians will get away with their evasions.

Often this is not the fault of the interviewer or other questioner.

There are some cracking questions asked of politicians.

But there are not many cracking answers.

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There is a fundamental disconnect about accountability in our politics.

At law, of course, a witness will be under pain of perjury.

(And the professional advocate asking the questions will be under their own rules about what questions can be properly put.)

There is an attractive notion that ministers, for example, should also be put under pain of perjury for their answers.

Attractive – but misguided.

The solution to the failure of accountability in parliament is not, in my view, to make parliament more like a court.

It is to make those in and watching Parliament care more about the standard of answers.

As it stands, neither the Speaker nor anyone else is personally responsible for ensuring that questions are properly answered in Parliament.

Instead, as with the investigation into Boris Johnson, it is left to a committee some months later to make a determination or not.

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Rather than some paper reforms or legislative changes, it is the culture of Parliament which is most urgently in need of reform.

Members of Parliament, on both sides of the House of Commons, need to care more about the answers they are given, and to be less tolerant of evasions – even if the questions are from political opponents.

For when questions have purchase – where questions cannot be deflected – then non-answers and easy answers have no hiding place.

Politicians showing leadership on this matter makes it more likely that the public will come to care more about what they are told – and what they are not told.

And that is the real answer to the hard question of how political accountability and scrutiny is made more effective.

***

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Will the United Kingdom’s constitutional excitements ever stop?

25th November 2022

The nights draw in, as another year comes to an end.

2022 will soon be over.

Yet, it does not look like the constitutional excitements in the United Kingdom will lessen.

The main opposition Labour party has opted to raise the issue of House of Lords reform or replacement; the third-largest party in the House of Commons – the Scottish National Party – are committed to somehow gaining independence for Scotland, despite (or because of) the Supreme Court judgment this week ruling out a unilateral referendum; and in Northern Ireland the shared power arrangements have long broken down, and there is a real prospect of a border poll.

And that is before we even come to the government of United Kingdom, with its various avowed intentions: to break international law by statute with a Northern Irish Protocol Act; to restrict the right to protest; to repeal the Human Rights Act and replace it with laws to make it more difficult to rely on human rights law; and to suddenly get rid of remaining European Union law without regard to what it does and what impact repeal would have.

This is not a happy polity.

Some of these issues – Northern Ireland and Scotland – are about serious fault-lines in our constitution, and these will need to be addressed, if not resolved.

Others are the sort of self-inflicted, unforced errors that are a feature of our current somewhat frenzied political culture.

But none of these are directly about the social and economic predicament of many of the people in the United Kingdom, or directly about health or education.

Or directly about the war in Europe or the energy crisis.

(Please note the “directly” before you type out comments saying “Actually there is a relationship…”.)

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As this blog has averred many times, constitutional law should be dull.

This is not because constitutional law is unimportant – it is fundamentally important.

It is because constitutional law sets the parameters of everyday political (and legal) action.

If those parameters themselves become the constant issue then there will be inefficiencies in that everyday political (and legal) action.

Few if any people want to watch a sporting contest where there are continual arguments with the referees and umpires, and eternal confrontations with the governing bodies.

Similarly, constitutional matters – that is, how public bodies get along and resolve tensions, or the boundaries between officials and those who are governed – are not themselves interesting to most normal people.

The opportunity cost of this post-Brexit preoccupation with constitutional matters, and this government’s infantile obsession with stoking culture war issues, is that insufficient thought and effort is going into many other areas of public policy.

These are the sorts of policy topics – the economy, welfare, defence – that should be the priority for public debate and political scrutiny.

Yes, from time to time, serious constitutional matters need to be attended to – and the futures of Scotland and Northern Ireland, and the relationship with the European Union – require careful consideration and realistic arrangements.

But otherwise our body politic seems rather worn out, and it needs a rest.

Our body politic cannot always be in a brace, brace position.

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An Article 50 for leaving the United Kingdom?

24th November 2022

A commenter over at Mastodon came up with this thought-provoking suggestion:

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You may recall our old friend Article 50:

This was the provision added to the European Union treaties in 2009 that enabled a member state to unilaterally and lawfully leave the European Union.

Before Article 50 was added, any member state that would have wanted to have left the European Union would either have had to have broken the treaties or negotiated an exit treaty.

(No member state did leave before 2009, though the departure of Greenland – part of the Kingdom of Denmark – from the European Economic Community in 1985 required a treaty.)

The new Article 50 ensured that any departure could be done lawfully and unilaterally.

(It was assumed by some that it would not actually be used.)

If a member state had wanted to leave then no other member state could then stop it.

The other member states, and the various European Union institutions, had no veto.

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What provisions do we have in the United Kingdom that approximate to Article 50?

For Northern Ireland we do have section 1 of the Northern Ireland Act 1998:

The decision to have such a poll, however, is a matter for the United Kingdom government:

So the people of Northern Ireland can elect for Northern Ireland to leave the Union, but only if the United Kingdom first consent to such a poll.

This is at least one step away from Northern Ireland having its own Article 50.

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For Scotland there is the possibility of a “Section 30 order” which would allow there to be an independence referendum, but – again – that order has to be given by the United Kingdom government.

But this is at least two steps away from Scotland having its own Article 50.

(And I am not any expert on Welsh devolution but a glance at the relevant legislation indicates that Wales may be three steps away, though I would welcome any comments on this.)

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If any of the constituent parts of the United Kingdom wished to (peacefully) leave the union there would, of course, have to be treaties and extensive legislation.

We know this, because it has already happened when Ireland left the United Kingdom.

Presumably a similar treaty and extensive legislation would be required if and when Scotland (or Wales) leaves the union.

There is nothing in place like Article 50 for Scotland or Wales or even Northern Ireland (or I suppose England) to activate unilaterally.

Should there be?

Discuss below.

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Do referendums now have a special constitutional status? And has the Supreme Court made it far harder for the UK government to ignore the results of any further “advisory” referendum? Some fascinating passages in today’s Supreme Court judgment

23rd November 2022

This morning the United Kingdom Supreme Court gave judgment in the reference made by the Scottish government about whether the Scottish Parliament could legislate for a non-binding referendum on Scottish independence.

This post is not about the specific issue of the Scottish independence referendum, which I have commented on at the Financial Times.

This post is instead about some fascinating passages in the judgment about referendums.

By way of background, the usual position is that there is a binary: on one hand there is parliament, and on the other hand there are extra-parliamentary exercises, such as referendums and consultation exercises.

These extra-parliamentary things are usually seen as advisory.

Sometimes there is an exception – the electoral reform referendum would have had a direct legal effect had a majority supported change.

But generally, referendums and such like are glorified opinion polls.

Any mandate is political, not legal.

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In today’s judgment, a unanimous Supreme Court seems to have put forward a different view (which I have broken up into sentences for flow and added bold for emphasis):

“78. The effect of the Bill, however, will not be confined to the holding of a referendum. Even if it is not self-executing, and can in that sense be described as advisory, a lawfully held referendum is not merely an exercise in public consultation or a survey of public opinion.

“It is a democratic process held in accordance with the law which results in an expression of the view of the electorate on a specific issue of public policy on a particular occasion. Its importance is reflected, in the first place, in its official and formal character.

“Statutory authority is needed (and would be provided by the Bill) to set the date and the question, to define the franchise, to establish the campaign period and the spending rules, to lay down the voting rules, to direct the performance of the counting officers and registration officers whose function it is to conduct the referendum, and to authorise the expenditure of the public resources required. Statutory authority, and adherence to the statutory procedure, confer legitimacy upon the result.

“79. That legislative framework is put in place because the result of a lawfully held referendum is a matter of importance in the political realm, even if it has no immediate legal consequences.

“That has been demonstrated in practice by the history of referendums in this country, and has also been recognised by this court.

“For example, in relation to the 2014 referendum on Scottish independence, Lord Hodge stated in Moohan v Lord Advocate […] with the agreement of the majority of the court, that “the referendum is a very important political decision for both Scotland and the rest of the United Kingdom”.

“In relation to the 2016 referendum on leaving the European Union, the majority of the court stated in R (Miller) v Secretary of State for Exiting the European Union […] : “[T]he referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation. But that in no way means that it is devoid of effect. It means that, unless and until acted on by Parliament, its force is political rather than legal. It has already shown itself to be of great political significance.”

[…]

“81. A lawful referendum on the question envisaged by the Bill would undoubtedly be an important political event, even if its outcome had no immediate legal consequences, and even if the United Kingdom Government had not given any political commitment to act upon it.

“A clear outcome, whichever way the question was answered, would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate.

“The clear expression of its wish either to remain within the United Kingdom or to pursue secession would strengthen or weaken the democratic legitimacy of the Union, depending on which view prevailed, and support or undermine the democratic credentials of the independence movement.

“It would consequently have important political consequences relating to the Union and the United Kingdom Parliament.”

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With regard to these “important political consequences”, the Supreme Court held that such a non-binding referendum would “in all the circumstances […] relate to” the reserved matters of the Union and the sovereignty of parliament, even if the referendum was not legally binding.

In particular, the Supreme Court emphasised that “statutory authority is needed (and would be provided by the Bill) to set the date and the question, to define the franchise, to establish the campaign period and the spending rules, to lay down the voting rules, to direct the performance of the counting officers and registration officers whose function it is to conduct the referendum, and to authorise the expenditure of the public resources required. Statutory authority, and adherence to the statutory procedure, confer legitimacy upon the result.”

A dedicated referendum, under a dedicated statute, is not to be taken lightly.

The key point in these passages is that “a lawfully held referendum is not merely an exercise in public consultation or a survey of public opinion”.

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The import of this judgment would seem to be that dedicated referendums set up by statute now occupy an intermediate position in the constitution of the United Kingdom.

They do not bind parliament (or presumably the courts), but they are not mere opinion polls either.

Such referendums and their results are, as a judge may say, “seen”.

The results of these referendums have a force which, even if not legally binding, is legally recognised and which may, in certain legal cases, make a legal difference.

Perhaps this may have implications in certain legal cases where there are “legitimate expectations” that a public body will act or not act in a certain way.

Perhaps it may have implications for what will follow a border poll in Northern Ireland, or in a further Scottish independence referendum.

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To an extent this is a judicial statement of the obvious political reality of referendums – but it is significant for it not only to be expressly acknowledged in a judgment but also (via “all the circumstances”) to have made a difference in this case.

Special referendums now appear to have a special constitutional status.

They matter and their results will be judicially recognised – even, as the Supreme Court expressly said here, if the United Kingdom government has not given any political commitment to act upon them.

If so, let us see what happens with the next one – that is, if there is a next one.

The consequential litigation may be fun.

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The one big problem with House of Lords reform

22nd November 2022

As today is a palindrome day – 22/11/22 – here is another palindrome: 111.

One hundred and eleven.

That is, the number of years since this statute was passed:

And if you read the preamble above, you will see that Act was only intended to be temporary, until there was a second chamber constituted on a “popular” basis.

But one hundred and eleven years later, the House of Lords is still there.

For reform is easy to announce, but hard to accomplish.

And in the House of Lords there are still ninety-one hereditary peers – and even twenty-six bishops from the Church of England (which, remember, is the established church in only one of the four constituent nations of the United Kingdom).

There are also several hundred life peers, each of whom is the beneficiary of some sort of patronage, or closed selection process, and none of whom are elected or in any meaningful way politically accountable.

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Of course, the House of Lords should be reformed or replaced.

Of course.

But how?

And here is a big problem about the House of Lords in our constitutional arrangements.

We need to first understand what a second chamber is for.

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Any reform of, or replacement for, the House of Lords has to be carried by the government of the day with the support of the House of Commons.

And neither the government of the day nor the House of Commons will usually want to strengthen the power of a second chamber.

This means that any reform or replacement is likely to strengthen both the government or the House of Commons, or both.

You may be think that would be a good thing, and perhaps it is, but as it stands the House of Lords provides a check and and a balance to any government that commands the House of Commons.

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The House of Lords cannot veto any legislation.

And the House of Lords will not (by convention) delay any legislation for which there is a mandate at a general election.

But for legislation which has been forced through the House of Commons with little or no scrutiny, the House of Lords currently provides an essential function, despite its lack of democratic legitimacy.

How can this function be maintained – even enhanced – with reform or replacement?

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This problem is why any fundamental reform of, or replacement for, the House of Lords really needs to be complemented by fundamental reform of the House of Commons.

For, as it stands, the House of Lords currently saves the House of Commons – and government ministers – from themselves.

Repeatedly, routinely, almost daily.

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Replacing life peers with elected politicians seeking re-election will removed the independence and expertise that provides the merit of the House of Lords.

Using some other basis of election – by regions or otherwise – may create a chamber with an equal claim to democratic legitimacy, thereby creating logjams, rather than revision.

As with the Crown, one useful feature of the House of Lords is not so much the power it has, but the power it prevents others in the polity from having.

So any serious discussion about reform or replacement should be preceded by anxious consideration of function and purpose: what is the House of Lords or new other chamber to do?

What is it actually for?

And then we should work backwards from that so as to see how it should be comprised.

By putting the question of composition before the question of function and purpose, one is perhaps putting the state coach before the horses.

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It is to be welcomed that the Leader of the Opposition, who has a real chance of being Prime Minister after the next general election, is openly discussing doing something with the House of Lords.

The first term of a left-of-centre government is usually the only time we will ever get a programme of constitutional reform – for example in 1945-50 or 1997-2001.

There are certainly a number of smaller reforms which could be made, including excluding the bishops and remaining hereditary peers, and reducing the scope of patronage by existing and exiting prime ministers.

All easy, quick wins.

But anything more significant requires there to be a balancing exercise, between the new chamber and the House of Commons and the executive.

And that balancing exercise should not be rushed.

Though, of course, we should not have to wait another one hundred and eleven years.

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A “Swiss-type” post-Brexit arrangement with the European Union for the United Kingdom?

21st November 2022

We had another Sunday special this weekend:

The newspaper considered the story so important that it was splashed on their front page:

You may have prejudices – indeed Very Strong Opinions – about political journalists and Sunday newspapers, but the starting assumption here must be that the reporters and the editor believed this story had sufficient substance so as to warrant such prominence.

The story would not have been invented.

If you look at the report, the basis for the story is as follows:

And:

Reading this closely we can note that (a) this is set for the “next decade” rather than an immediate policy and (b) the source(s) quoted is(/are) not said to be ministerial level.

Although “ministers” are said to be “confident” about the “thaw”, the “senior government sources” in favour of this Swiss-type arrangement would appear to not to be ministers.

Had it been ministers, the newspaper would presumably have said so.

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Many readers of this blog will also have Very Strong Opinions about a Swiss-type arrangement.

I have two initial responses.

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The first is that this was another example of British exceptionalism and unilateralism, with the assumption that just because the United Kingdom wants something, it will get it.

Perhaps we can click our fingers and speak loudly and slowly in English as we demand this arrangement.

There seems no realisation that any agreement requires all parties to agree, and there is no indication that the European Union would want a Swiss-type relationship with the United Kingdom.

The European Union does not even want a Swiss-type relationship with the Swiss.

A Swiss-type relationship requires a number of discrete agreements to be negotiated and implemented in respect of sectors and subjects.

The European Union would be unlikely to have the patience or the inclination to deal with the United Kingdom, with the latter’s still-raw post Brexit politics and continuing governing party psychodrama, in such a fiddly manner.

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But.

My second response was a mild cheer.

Regardless of the impracticality of the suggestion, it at least showed a glimmer of realism in Whitehall that the United Kingdom does need to re-think its relationship with the European Union internal market and for that relationship to be placed on a better footing.

And if we read carefully, this was not a demand for action tomorrow, but a proposal for the direction of travel over the next ten years.

The source is correct that “it is overwhelmingly in the businesses interests on both sides”.

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But, but.

Today’s political news has been about the government denying this report.

I suspect that this denial is true too, on its own terms.

This denial is not incompatible with the actual words of the source quoted above, given Sunak and his government are unlikely to still be in power in three years’ time, let alone in ten years.

The commercial and economic pressures for a closer and more sustainable relationship will continue.

The politics, of course, are toxic – but there are at least two general elections in the next ten years.

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The preference of this blog is, as many of you will know, for a close association between the United Kingdom and European Union, with shared institutions and agreed processes, which would allow us to participate in the internal market.

(“But that will mean we are ‘rule-takers!’ “ will comment Pavlov’s commenters, not caring that we are now very much rule-takers in our current predicament.)

And such an association is better done as a single agreement rather than many Swiss-type bilateral agreements.

The politics in the United Kingdom will need to settle down before this can happen.

But the commercial and economic case will continue to be there, getting stronger and more compelling with each economic quarter.

Piloting the United Kingdom to such a relationship, and convincing the European Union that it is sustainable to agree it with us, is the great challenge for United Kingdom statecraft over the next decade.

That, and the great challenge of even keeping the United Kingdom together in one union.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.